The code of silence

Fred Lembach could feel the tension in the air. He was getting looks from his co-workers that carried a message: If you turn on us, your life will be in danger. Then the menacing phone calls began. Finally, the message became more than clear, when the man he saw get assaulted by co-workers was then stabbed at home. After the stabbing, a supervisor at work told Lembach: I’d be packin’. He didn’t need another message. He needed simply to forget the violence that he had seen and not to stir up more trouble. Lembach knew that the situation had become one of life and death for him and his wife. He had gone up against a group of people who were unafraid to keep him and his co-worker quiet at any cost.

Donald “D.J.” Vodicka was overwhelmed with an intense anxiety when he woke up each morning—so much so that he decided to strap on his bulletproof vest and firearm before leaving for work. Because he knew too much, a gang with a history of expertise in intimidation wanted to help him forget. As a result of the unrelenting stress of this environment, his health deteriorated, and he planned to leave California to protect himself and his son from the reprisals that he believed were coming.

Like Lembach, Vodicka fears that California correctional officers, sworn to uphold the law, are not above using violence in order to keep him quiet.

The two men are whistleblowers living in fear: state employees who followed the law, and their own personal sense of duty to the public, and reported the misconduct of government co-workers at the California Department of Corrections (CDC). Unfortunately, the CDC may be the one state agency whose highest-ranking administrators are the least likely to acknowledge that any of its employees are capable of wrongdoing, and whose administrators also are willing to spend millions in taxpayer funds to prove themselves right in lengthy court battles.

That historically inbred philosophy of protecting one’s own, and a “code of silence” regarding problems inside the system, are intertwined with some employees who replicate the violent prison subculture of the inmates they manage each day. That dangerous combination has created serious problems for the handful of employees who have done the right thing and gone against rogue officers and their supervisors. In January, a parade of those employees testified under oath at two days of hearings of the Senate Select Committees on Government Oversight and the California Correctional System, co-convened by State Senators Jackie Speier, D-San Mateo, and Gloria Romero, D-Los Angeles. Also testifying under oath were an A-list of CDC administrators and officials who admitted to the existence of many persistent problems, including the code of silence, and promised to enact reforms.

But, four months later, seemingly simple policy changes—that would have an immediate effect on employees whose lives were upended by the department and that would send a supportive message to other employees—have not materialized.

Vodicka was reluctant to cooperate with Speier’s request that he tell his story to the Legislature at a high-profile public hearing, because he knew that associates of the people he feared could be in attendance.

The athletic, 6-foot-6-inch, 280-pound former college basketball player had never backed down from a confrontation during his 16-year career managing convicted felons, but this time, he would be outside his element. And, after what he had been through, he felt a strong sense of betrayal by the CDC and wanted to help with any process that might prevent the same thing from happening to someone else. So, he had to tell his story, and he made the five-hour drive from Southern California to Sacramento. When he arrived at the statehouse, he left the firearm he always had strapped to his side in the car, but the additional bulk of his bulletproof vest was visible as he was sworn in in a packed hearing room.

Doug Pieper also would have wanted to cooperate with the Legislature and provide testimony about the employee misconduct at Folsom Prison, according to his widow, Evette. But Pieper had taken his own life a year earlier, in part because of the workplace retaliation he experienced. And the government formally admitted that Pieper’s death was indeed work-related. In her husband’s place, Evette gave her emotional testimony in a hushed legislative hearing room, including the details of a suicide note her husband had left, linking his death to reprisals by the warden and other officials. Like Vodicka, Evette said she hoped her story would help others avoid a similar fate. “I don’t want any other family to ever go through this, and I don’t want any other staff members to feel the stress, pressure and pain that my husband felt that ultimately drove him to do what he did.”

At the start of the hearings, Speier had foreshadowed the anticipated testimony. “Much of the testimony we will hear will be startling and even unbelievable. Many whistleblowers who will speak under oath today fear for their jobs and their lives,” she said. In addition to that of Vodicka and Evette, the unsettling testimony of other CDC employees from throughout the state confirmed that Speier was not exaggerating.

“California’s prison system teeters on the brink of being declared bankrupt, not only in its policy but in its morality, starting with top prison brass,” said Romero in her opening statement. Romero went on to review the findings contained in the recently released 85-page draft report of John Hagar, an investigator or “special master” appointed by a federal-court judge in San Francisco. The Hagar report originated from an investigation of employee misconduct at Pelican Bay State Prison and detailed a litany of internal CDC problems at the highest levels of the department, including the code of silence.

Under the code, employees tacitly agree not to report the misconduct of co-workers. Adherence to the code also includes making false statements to investigators to protect co-workers, and “the most egregious form of the code, lying in federal court,” according to Hagar. Employees who violate the code are isolated, ostracized and labeled “rats” or “snitches.” But the ramifications go beyond name-calling; getting such a label can mean that in the case of a prison altercation or riot, backup assistance from co-workers might not be there. “A minority of rogue officers can establish a code of silence, threaten the majority, damage cars, isolate uncooperative co-workers, and create an overall atmosphere of deceit and corruption,” Hagar wrote. “It cannot be emphasized too strongly that the code of silence is always accompanied by corruption.”

Hagar also found a code of silence about the code of silence among high-ranking CDC administrators, including the former director, Edward Alameida. The special master recommended that the federal court consider initiating criminal contempt charges against Alameida for his role in the Pelican Bay cover-up. The significance, and perhaps irony, of that particular Hagar recommendation did not escape emphasis by Speier. “No two women are going to run my prisons,” Alameida had told Speier and Romero at a similar hearing last year. Also testifying at the hearings were an assortment of CDC officials who promised system-wide reforms were in the works.

A central figure at the legislative hearings was the secretary of the California Youth and Adult Correctional Agency (YACA), Rod Hickman. YACA is the umbrella agency that oversees the CDC and virtually every other state agency responsible for corrections. Appointed by Governor Arnold Schwarzenegger last November, Hickman is the top CDC official in the state. Hickman’s appointment, however, requires confirmation by the state Senate, and, in January, the secretary-in-waiting was particularly congenial with the Senate members who held the power over whether he would get to keep his new job. Hickman promised the committee he would address the laundry list of problems identified by the legislators and the Hagar report. “How we conduct ourselves on the job is a reflection of [our agency’s] values and demonstrates our commitment to a strong organization that treats the public, staff and offenders fairly,” he said.

Less than a month after the January hearings, Hickman seemed to be making good on his promises when he issued a memo to all CDC employees, captioned “ZERO TOLERANCE REGARDING THE ‘CODE OF SILENCE.’” For maximum exposure, the memo also was posted to the agency’s Web site. The memo acknowledged that “the public’s trust has been undermined by the operation of the Code of Silence within the CDC,” and it went on to put the 49,247 employees of the department on notice that, effective immediately, the code of silence would not be tolerated. Hickman also had reassuring words for employees who observe misconduct but might be reluctant to report it out of fear of retaliation. “The public’s trust in this department is also violated by retaliating against, ostracizing, or in anyway undermining those employees who report wrongdoing and/or cooperate during investigations. … We also will not tolerate any form of reprisal against employees who report misconduct or unethical behavior, including their stigmatization or isolation,” Hickman wrote. Although the memo did not establish any new policy, it put the troops on notice that existing department rules and state laws would be enforced.

Vodicka, Lembach and Richard Krupp, another whistleblower from CDC headquarters in Sacramento, would not deny that they have felt ostracized, stigmatized and isolated as a direct result of breaking the code of silence and reporting the misconduct of co-workers in the CDC. Because of the reprisals and retaliation they endured, they each filed whistleblower lawsuits against the department, and the current status of those claims calls into question the sincerity of the CDC’s promises to the Legislature, and Hickman’s “zero tolerance” pronouncement of February 17. The men’s attorneys say the CDC continues to contest the claims aggressively, has refused reasonable settlement offers and is dragging out the proceedings as long as possible in the hope of mentally and financially wearing the men down. Under the California Whistleblower Protection Act, whistleblowers are entitled to job reinstatement, back pay, restoration of lost service credits, and other relief. The act says that “state employees should be free to report waste, fraud, abuse of authority, violation of law, or threat to public health without fear of retribution.” Other state laws also protect whistleblowers.

SN&R wanted to ask the CDC and Hickman about the cases and about whether the new zero-tolerance policy applied to them, among other things. CDC spokeswoman Terry Thornton said that since the Lembach, Vodicka and Krupp cases were personnel matters, the department could not comment. Thornton did, however, say she would “look into” whether the CDC planned to reevaluate pending whistleblower cases in light of the promises made by CDC officials to the Legislature in January, but she never called back. Hickman did not respond to phone and fax requests for an interview. CDC Director Jeanne Woodford also did not respond to phone and faxed requests for an interview. Thornton was able to confirm that the CDC has a longstanding policy protecting employees from retaliation when they report misconduct, but she didn’t know exactly where it was located within CDC rules and regulations.

The Lembachs looked frustrated when they walked out of the nondescript conference room in the Sacramento Superior Court building on February 23, just six days after Hickman had issued the zero-tolerance memo. The Lembachs and their attorney, John Scott, had been in a sit-down with attorneys representing the CDC, and the group had been trying to reach a settlement and avoid a jury trial of the Lembachs’ whistleblower lawsuit. Citing the ongoing negotiations, Scott declined to comment on the proceedings other than to say no agreement was reached, but court records detail what happened to the couple. (Fred Lembach’s wife, Virginia, also worked at the prison.)

It was more than three years ago, when, ironically, Lembach had followed the edict in Hickman’s recent zero-tolerance memo nearly to the letter. After Lembach witnessed what was either an assault or a hazing incident run amok between co-workers at Ironwood State Prison in Riverside County, Lembach broke the code of silence and cooperated with an internal investigation. Correctional officer Curtis Landa, the victim of the assault, also cooperated.

Two months into the investigation, Landa was attacked outside his home as he took out the garbage. His jacket was pulled over his head, and he was hit in the back with a club-like weapon. He was then stabbed twice, in the back and chest. Landa was able to see that his attackers wore black uniform pants tucked and blossomed into black boots in the same manner as those worn by the prison’s elite cell extraction team. The attackers were never fully identified, and no arrests were made in connection with the stabbing incident. But Landa and the Lembachs got the message loud and clear. And, apparently, so did the CDC. All three were provided an around-the-clock armed security detail and relocated to Sacramento.

In their lawsuit, the Lembachs allege that instead of adequately investigating the incident and providing them a safe workplace, the CDC forced them to transfer to Sacramento. “The defendants could have taken steps to eliminate the code of silence and the resulting risk it posed to Plaintiffs. Instead, the Defendants chose to perpetuate the code of silence rather than create a safe work environment at Ironwood State Prison,” reads the lawsuit. Last November, a CDC motion to have the case dismissed was denied by Sacramento Superior Court Judge Thomas Cecil. The massive, five-volume-thick court file alludes to the amount of time, effort and money both sides have invested in the case.

The Lembachs’ attorney, Scott, has represented clients against the CDC for more than 10 years and says that the CDC will spend, for example, $500,000 aggressively fighting a case like the Lembachs’ that it could have settled initially for $500,000 or less. And, just before the trial starts, the CDC will spend an additional $500,000 to resolve the case and avoid a jury trial. “It’s not their money,” he said. This strategy, requiring employees and their attorneys to spend enormous sums to pursue a whistleblower case, is designed to send a message, according to Scott. “It’s going to deter people from suing them, and it does. It deters most lawyers from pursuing cases with them.” The Lembachs’ case, in which they seek unspecified damages, is scheduled for trial next month.

After a four-year stint in the military in the special-operations command, Vodicka was hired as a correctional officer by the state of California in 1988. His first stop was the CDC Basic Correctional Officer Academy in Galt, which, at the time, was run by Hickman.

After graduating from the academy, Vodicka began work “on the line” at Corcoran State Prison, but he was anxious to take on new responsibilities. Throughout the course of his 12-year career, he took courses in homicide investigation, interrogation, conflict management, gangs and more than a dozen other subjects. In 1992, Vodicka transferred to Calipatria State Prison to help open the new facility in Imperial County. At Calipatria, Vodicka said, he was hand-picked to work in the Investigative Services Unit, a specialized team within the prison that was responsible for investigating inmate criminal activity and assisting the local district attorney with those prosecutions. Vodicka said he had a lot of respect for his supervisor, Hickman, whose CDC career path also had brought him to “Calipat.”

In 1994, Vodicka began a two-year stint at Pelican Bay. And in 1996, he received a Certificate of Meritorious Service from the Del Norte County district attorney’s office for his professionalism in assisting with the prosecution of numerous crimes committed in prison. Throughout his career, Vodicka also received positive performance evaluations and peer reviews from the CDC. In 1996 he transferred to Salinas Valley State Prison, a Level 4, maximum-security institution.

After five years of service at Salinas Valley, Vodicka received an assignment he was reluctant to take. Vodicka was ordered by his supervisor to investigate and prepare reports on a group of correctional officers who essentially had formed a gang, known as the “Green Wall.” Vodicka was uncomfortable with the assignment, which was outside the normal scope of his job duties. “Let me make this clear: Investigative Services officers like myself—we do not investigate officers. We’re not allowed to investigate officers. We do strictly inmates and their families, that kind of stuff,” he explained. A supervisor, however, was authorized to initiate officer investigations and could enlist Investigative Services staff to assist.

Vodicka prepared the reports that confirmed that the group existed. The reports were supposed to be confidential, but they were leaked and became known to members of the group. As a result, Vodicka was subjected to a string of subtle and not-so-subtle retaliatory acts, including being called a snitch in front of officers and inmates. The state inspector general (IG) also verified the existence of the group in a report released last January. The IG investigation confirmed that a group of officers had formed an alliance in 1999 called the Green Wall or 7/23, representing the seventh and 23rd letters of the alphabet, G and W. Number insignias are common in inmate prison gangs; “18” is a common insignia among white-supremacist groups, because it represents the first and eighth letters of the alphabet, A and H, an abbreviation for Adolf Hitler. And in his report on Pelican Bay misconduct, Hager noted that “some correctional officers acquire a prisoner’s mentality: they form gangs, align with gangs, and spread the code of silence.” The IG report went on to say that “numerous incidents involving the Green Wall group took place at Salinas Valley State Prison between 1999 and 2001, including the vandalizing of institution property with ‘7/23’ and ‘GW’ markings and the taping on a window of a paper containing the Green Wall logo and the satanic symbol ‘666.’”

The report also found that the warden was aware of the group and did not act on a lieutenant’s request that officers who might be involved in the gang be temporarily reassigned to other duties while investigations concerning excessive force and other allegations of misconduct were pending against them. The IG concluded that the warden’s inaction “fostered an atmosphere of distrust and prevented a timely investigation and resolution of allegations concerning employee misconduct.”

Vodicka said he was subjected to several months of retaliation in the form of hostility and verbal or physical threats from several correctional officers, and he was informed by a sergeant that a co-worker was broadcasting that Vodicka was a snitch. After Vodicka reported the problems to a deputy warden and other supervisors, he was transferred to Pleasant Valley State Prison. But within weeks of his arrival there, co-workers became aware of his history at Salinas Valley, and he began to experience similar abuse. At one point, Vodicka and other staff and inmates were gathered in an office at the prison, and an officer yelled out to Vodicka, “You big snitch, who are you ratting out now?” Because inmates were present, the statement potentially could have relayed a message to prisoners that Vodicka was an outcast among his co-workers, in the same sense that an inmate informant would be ostracized. Vodicka said the stigmatization and isolation eventually took its toll on his mental state, and he went out on stress disability leave; filed a workers’-compensation claim; and, later, filed a suit against the CDC, a co-worker and a supervisor.

Exacerbating his ongoing stress, and compelling him to carry a firearm and wear a bulletproof vest, are his concerns stemming from the Landa incident. Vodicka believes that former co-workers from Salinas Valley may assault him or arrange to have him assaulted. Salinas Valley has a cell extraction team like the one implicated in the Landa stabbing. Vodicka has seen pictures of the Salinas Valley team flashing a hand signal associated with the Green Wall. Last June, as he was leaving the California Mid-State Fair in Paso Robles, he claims, Vodicka was confronted by a CDC employee who demanded that he “back off,” in reference to his lawsuit. And, based on his own experience doing prison drug investigations, Vodicka believes that it would be possible for a prison staffer to arrange to smuggle in drugs for an inmate in exchange for the inmate getting an associate on the outside to pay back the favor by assaulting Vodicka.

Last year, Vodicka offered to go back to work at any commensurate position in the CDC, as long as the agency would ensure his personal safety, according to his attorney, Lanny Tron. “And they said, ‘There’s no way we can do that,’” said Tron. Since that time, Vodicka has been on full disability, and he seeks a settlement for what he would have earned had he been able to finish his career, compensation for his trauma, and other damages, according to Tron.

Krupp’s ordeal is perhaps the most egregious example of CDC retaliation—not involving threats of violence—and illustrates the obstinacy of the department in the face of seemingly overwhelming evidence against it. Krupp has worked for the CDC for more than 30 years, and during that time he received a Supervisor of the Year award and a Directors Appreciation Award, and he earned a doctorate in criminal justice. In 1998, his employee Performance Appraisal Summary rated him as consistently exceeding standards in eight of nine performance factors.

That same year, Krupp prepared a prison-by-prison analysis of sick-leave and overtime usage by correctional officers. The numbers revealed that most institutions were significantly over budget, though a few had lower numbers. Krupp suggested that the cost-control methods of the institutions that had lower rates of overtime and sick pay be applied to those that had higher rates. Krupp’s supervisors rejected the idea.

The following year, the Bureau of State Audits conducted a review of the CDC’s personnel costs and found excessive use of sick leave and overtime by custodial staff. In response, the CDC attempted to recalculate and manipulate the data by adding in vacant positions that didn’t use sick leave, thereby bringing down the sick-leave percentage numbers, and by adding other staff who didn’t earn sick leave, rather than limiting the analysis to correctional officers. The CDC also attempted to compare January, a high-use month, with June, a low-use month, in order to reach the conclusion that sick leave was decreasing. Krupp said he was asked to assist with the creative accounting but refused. As a result, Krupp involuntarily was moved to another job in the department, where he reviewed research proposals sent in by college students who were seeking to interview inmates for the students’ dissertations. Krupp said that task required about 30 minutes of work per week, and he spent most of the rest of the time in the $72,000-a-year position reading more than 200 books.

Krupp filed whistleblower complaints with the IG and the State Personnel Board (SPB)—and his former supervisors became defendants in those complaints. While he was waiting for the decisions on his whistleblower claims, he tried to change jobs on his own. “I was on two promotional lists, so I would go for promotional interviews, and some of the defendants in my [whistleblower] case were sitting on the panel—my interview panel. So, I eventually stopped participating in the interviews, because I thought it was a waste of time to have these people sitting in judgment,” he said.

Krupp’s allegations of retaliation subsequently were found to be true by the SPB, and twice by the IG’s office, after the CDC contested the first decision confirming Krupp’s claims. Krupp said the CDC has had at least 18 attorneys working against him on the case, which has dragged on for more than two years. Richard Steffan, a consultant in Speier’s office, said the CDC has spent more than $312,000 in legal fees and other expenses fighting Krupp. “And the case isn’t over, so there will be more expenditures,” said Steffan. Some of those additional expenditures will occur next month—four months after the Legislature’s CDC hearings and Hickman’s zero-tolerance memo—when four days of hearings for Krupp’s case are scheduled at the SPB. The department sought and was granted a court request to contest the SPB’s earlier finding in Krupp’s favor. And more public funds will be spent to fight Krupp’s pending Sacramento County Superior Court case. Meanwhile, the department has not taken any action against the employees who retaliated against Krupp. “That’s how successful zero tolerance is,” said Krupp’s attorney, Scott. “Just ask them. They never retaliate, and anybody who says they do is wrong.”

Scott has been practicing public-policy and civil-rights law since the late 1970s. Since that time, he has represented the families of patients who died at Napa State Hospital, police-brutality victims, and female police officers who were subjected to departmental discrimination and harassment. Scott said the CDC is unquestionably one of the most unreasonable defendants he has ever met. “When my client is alleging that they did something wrong, it doesn’t matter what the evidence is, what the facts are or what the merits are. They’re going to defend it and say they haven’t done anything wrong,” he said. Scott also sees an unspoken complicity with the CDC by other branches of government. “All the wardens and top officials in the CDC have to be approved by the governor and the Senate. These are political appointments. It’s not going to make the senators or the governor look very good if it comes out that all of these people who they’re appointing are crooks or incompetent,” he said. Scott does, however, give Speier and Romero high marks. “I think Jackie Speier and Gloria Romero are very sincere, and I applaud what they’re doing. I think they’ve been courageous, and I think they are genuinely committed to the public interest.”

Speier still believes that the new leadership in the CDC is sincere about implementing systemic changes for the better. “I don’t think it’s going to happen overnight, because you’re changing the culture, and you’re changing the way people who have been there for quite a while have come to operate,” she said. Speier cites the case of CDC whistleblowing employee Sam Cox as an example of recent progress. Last year, Cox was asked to delete the allegedly incriminating audio portion of a videotape of a Folsom Prison riot. When Cox refused, he was demoted to yard sergeant and given a less-desirable shift and work schedule. Speier said Cox since has been promoted to captain, has moved to CDC headquarters “and has received lots of plaudits and positive feedback for doing the right thing.”

Speier also said she is committed to keeping track of the other whistleblowers who told their stories at the January hearings. “I always worry that whistleblowers get a raw deal, and, in the end, most of them do, so I’m always cognizant of making sure that we keep tabs on them and follow up with them,” she said. In at least one case, that may take some out-of-state phone calls. The mental stress of being a whistleblower continues to take its toll on Vodicka. “I’ve got to leave the state. I’ve got to go somewhere and hide. That’s how paranoid I am,” said Vodicka.

Vodicka wants to believe that Hickman will intervene on his behalf and set things right. He related the story of a brief encounter in the hall during his January appearance at the Legislature. On his way to the restroom, Vodicka was spotted by his old squad captain. He said Hickman broke away from his entourage, walked up and shook his hand. “Glad to see you,” Hickman said. “You and your son take care of yourself and don’t let this get to you. We’ll get to the bottom of this.”